Constitution of Japan

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The Constitution of Japan (Shinjitai: 日本国憲法 Kyūjitai: 日本國憲法 Nihon-Koku Kenpō?) is the fundamental law of Japan. It was enacted on 3 May 1947 as a new constitution for postwar Japan.

Outline[edit]

The constitution provides for a parliamentary system of government and guarantees certain fundamental rights. Under its terms the Emperor of Japan is "the symbol of the State and of the unity of the people" and exercises a purely ceremonial role without the possession of sovereignty.

The constitution, also known as the "Postwar Constitution" ( 戦後憲法 Sengo-Kenpō?) or the "Peace Constitution" ( 平和憲法 Heiwa-Kenpō?), is most characteristic and famous for the renunciation of the right to wage war contained in Article 9 and to a lesser extent, the provision for de jure popular sovereignty in conjunction with the monarchy.

The constitution was drawn up under the Allied occupation that followed World War II and was intended to replace Japan's previous militaristic and absolute monarchy system with a form of liberal democracy. Currently, it is a rigid document and no subsequent amendment has been made to it since its adoption.[1]

Historical origins[edit]

Meiji Constitution[edit]

"Emperor's words"

The Constitution of the Empire of Japan of 1889 (commonly called the "Meiji Constitution", after the emperor during whose reign it was composed), was the fundamental law of the former state. Enacted after the Meiji Restoration in 1868, it provided for a form of mixed constitutional and absolute monarchy, based jointly on the Prussian and British models. In theory, the Emperor of Japan or Tenno was the supreme ruler, and the Cabinet, whose Prime Minister would be elected by a Privy Council, were his followers; in practice, the Emperor was head of state but the Prime Minister was the actual head of government. Under the Meiji Constitution, the Prime Minister and his Cabinet were not necessarily chosen from the elected members of the Diet. Pursuing the regular amending procedure of the "Meiji Constitution", it was entirely revised to become the "Postwar Constitution" on 3 November 1946. The Postwar Constitution has been in force since 3 May 1947.

The Potsdam Declaration[edit]

On 26 July 1945, Allied leaders Winston Churchill, Harry S. Truman, and Chiang Kai-shek issued the Potsdam Declaration, which demanded Japan's unconditional surrender. This declaration also defined the major goals of the postsurrender Allied occupation: "The Japanese government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established" (Section 10). In addition, the document stated: "The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established in accordance with the freely expressed will of the Japanese people a peacefully inclined and responsible government" (Section 12). The Allies sought not merely punishment or reparations from a militaristic foe, but fundamental changes in the nature of its political system. In the words of political scientist Robert E. Ward: "The occupation was perhaps the single most exhaustively planned operation of massive and externally directed political change in world history."

Drafting process[edit]

The Constitution of Japan was largely drafted by US lawyers in the occupation authority. This image is of a secret memo written by members of the authority on the subject of the new constitution.

The wording of the Potsdam Declaration—"The Japanese Government shall remove all obstacles..."—and the initial post-surrender measures taken by Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), suggest that neither he nor his superiors in Washington intended to impose a new political system on Japan unilaterally. Instead, they wished to encourage Japan's new leaders to initiate democratic reforms on their own. But by early 1946, MacArthur's staff and Japanese officials were at odds over the most fundamental issue, the writing of a new constitution. Emperor Hirohito, Prime Minister Kijuro Shidehara and most of the cabinet members were extremely reluctant to take the drastic step of replacing the 1889 Meiji Constitution with a more liberal document.[2] In late 1945, Shidehara appointed Joji Matsumoto, state minister without portfolio, head of a blue-ribbon committee of constitutional scholars to suggest revisions. The Matsumoto Commission's recommendations, made public in February 1946, were quite conservative (described by one Japanese scholar in the late 1980s[who?] as "no more than a touching-up of the Meiji Constitution").[citation needed] MacArthur rejected them outright and ordered his staff to draft a completely new document. An additional reason for this was that on January 24, 1946, Prime Minister Shidehara has suggested to MacArthur that the new Constitution should contain an article renouncing war.

Much of the drafting was done by two senior army officers with law degrees: Milo Rowell and Courtney Whitney, although others chosen by MacArthur had a large say in the document. The articles about equality between men and women are reported to have been written by Beate Sirota.[3][4]

Although the document's authors were non-Japanese, they took into account the Meiji Constitution, the demands of Japanese lawyers, the opinions of pacifist political leaders such as Shidehara and Shigeru Yoshida, and especially the draft presented by the Constitution Research Association (Kenpō Kenkyū-kai) under the chairmanship of Suzuki Yasuzō (1904-1983), which had been translated into English in its entirety already at the end of December 1945. MacArthur gave the authors less than a week to complete the draft, which was presented to surprised Japanese officials on 13 February 1946. On 6 March 1946 the government publicly disclosed an outline of the pending constitution. On 10 April elections were held to the House of Representatives of the Ninetieth Imperial Diet, which would consider the proposed constitution. The election law having been changed, this was the first general election in Japan in which women were permitted to vote.

The MacArthur draft, which proposed a unicameral legislature, was changed at the insistence of the Japanese to allow a bicameral legislature, both houses being elected. In most other important respects, however, the ideas embodied in the 13 February document were adopted by the government in its own draft proposal of 6 March. These included the constitution's most distinctive features: the symbolic role of the Emperor, the prominence of guarantees of civil and human rights, and the renunciation of war.

In 1946, criticism of or any reference at all to SCAP's role in drafting the constitution could be made subject to CCD censorship (as was any reference to censorship itself).[5] Until late 1947, CCD exerted pre-publication censorship over about 70 daily newspapers, all books and magazines and many other publications.[6]

Adoption[edit]

"The Imperial Signature (upper right) and Seal"
"The Preamble to the Constitution"

It was decided that in adopting the new document the Meiji Constitution would not be violated, but rather legal continuity would be maintained. Thus the 1946 constitution was adopted as an amendment to the Meiji Constitution in accordance with the provisions of Article 73 of that document. Under Article 73 the new constitution was formally submitted to the Imperial Diet by the Emperor, through an imperial rescript issued on 20 June. The draft constitution was submitted and deliberated upon as the Bill for Revision of the Imperial Constitution. The old constitution required that the bill receive the support of a two-thirds majority in both houses of the Diet in order to become law. After both chambers had made some amendments the House of Peers approved the document on 6 October; it was adopted in the same form by the House of Representatives the following day, with only five members voting against, and finally became law when it received the Emperor's assent on 3 November. Under its own terms the constitution came into effect six months later on 3 May 1947.

A government organisation, the Kenpō Fukyū Kai (政界通信社?, Constitution Popularisation Society), was established to promote the acceptance of the new Constitution among the general populace.[7]

Early proposals for amendment[edit]

The new constitution would not have been written the way it was had MacArthur and his staff allowed Japanese politicians and constitutional experts to resolve the issue as they wished.[citation needed] The document's foreign origins have, understandably, been a focus of controversy since Japan recovered its sovereignty in 1952.[citation needed] Yet in late 1945 and 1946, there was much public discussion on constitutional reform, and the MacArthur draft was apparently greatly influenced by the ideas of certain Japanese liberals. The MacArthur draft did not attempt to impose a United States-style presidential or federal system. Instead, the proposed constitution conformed to the British model of parliamentary government, which was seen by the liberals as the most viable alternative to the European absolutism of the Meiji Constitution.[citation needed]

After 1952 conservatives and nationalists attempted to revise the constitution to make it more "Japanese", but these attempts were frustrated for a number of reasons. One was the extreme difficulty of amending it. Amendments require approval by two-thirds of the members of both houses of the National Diet before they can be presented to the people in a referendum (Article 96). Also, opposition parties, occupying more than one-third of the Diet seats, were firm supporters of the constitutional status quo. Even for members of the ruling Liberal Democratic Party (LDP), the constitution was advantageous. They had been able to fashion a policy-making process congenial to their interests within its framework. Yasuhiro Nakasone, a strong advocate of constitutional revision during much of his political career, for example, downplayed the issue while serving as prime minister between 1982 and 1987.

Provisions[edit]

The constitution has a length of approximately 5,000 words and consists of a preamble and 103 articles grouped into eleven chapters. These are:

Preamble[edit]

The constitution contains a firm declaration of the principle of popular sovereignty in the preamble. This is proclaimed in the name of the "Japanese people" and declares that "sovereign power resides with the people" and

government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people.

Part of the purpose of this language is to refute the previous constitutional theory that sovereignty resided in the Emperor. The constitution asserts that the Emperor is merely a symbol and that he derives "his position from the will of the people with whom resides sovereign power" (Article 1). The text of the constitution also asserts the liberal doctrine of fundamental human rights. In particular Article 97 states that

the fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.

The Emperor (Articles 1–8)[edit]

Main article: Emperor of Japan

Under the Constitution, the Emperor carries out most of the functions of a head of state; he formally appoints the Prime Minister and Chief Justice of the Supreme Court, promulgates statutes and treaties and has other enumerated functions. His role is merely ceremonial and, unlike the forms of constitutional monarchy found in some other nations, he possesses no reserve powers. The budget for the maintenance of the imperial household is controlled by resolution of the Diet.

Renunciation of war (Article 9)[edit]

Under Article 9, the "Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes". To this end the article provides that "land, sea, and air forces, as well as other war potential, will never be maintained." The necessity and practical extent of Article 9 has been debated in Japan since its enactment, particularly following the establishment of the Japan Self-Defense Forces, a de facto military force, in 1954. Various political groups have called for either revising or abolishing the restrictions of Article 9 in order to permit collective defense efforts and strengthen Japan's military capabilities.

Individual rights (Articles 10–40)[edit]

"The rights and duties of the people" are prominently featured in the postwar constitution. Altogether, thirty-one of its 103 articles are devoted to describing them in considerable detail, reflecting the commitment to "respect for the fundamental human rights" of the Potsdam Declaration. Although the Meiji Constitution had a section devoted to the "rights and duties of subjects", which guaranteed "liberty of speech, writing, publication, public meetings, and associations", these rights were granted "within the limits of law". Freedom of religious belief was allowed "insofar as it does not interfere with the duties of subjects" (all Japanese were required to acknowledge the Emperor's divinity, and those, such as Christians, who refused to do so out of religious conviction were accused of lèse-majesté). Such freedoms are delineated in the postwar constitution without qualification.

Individual rights under the Japanese constitution are rooted in Article 13 where the constitution asserts the right of the people "to be respected as individuals" and, subject to "the public welfare", to "life, liberty, and the pursuit of happiness." This article's core notion is jinkaku, which represents "the elements of character and personality that come together to define each person as an individual," and which represents the aspects of each individual's life that the government is obligated to respect in the exercise of its power.[8] Article 13 has been used as the basis to establish constitutional rights to privacy, self-determination and the control of one's own image, which rights are not explicitly stated in the constitution.

Subsequent provisions provide for:

Under Japanese case law, constitutional human rights apply to corporations to the extent possible given their corporate nature. Constitutional human rights also apply to foreign nationals to the extent that such rights are not by their nature only applicable to citizens (for example, foreigners have no right to enter Japan under Article 22 and no right to vote under Article 15, and their other political rights may be restricted to the extent that they interfere with the state's decision making).

In one study, the conviction rate in contested Japanese trials in 1994 was found to be 98.8%, while the comparable conviction rate in contested United States federal trials in 1994 was 30.9%. The study concluded that this was due to the limited budgets for prosecutors in Japan compared to the United States, leading them to prosecute only the most solid cases, rather than due to bias by judges. [10]

Organs of government (Articles 41–95)[edit]

Politics under the Postwar Constitution
Main article: Government of Japan

The constitution establishes a parliamentary system of government in which legislative authority is vested in a bicameral National Diet. Although a bicameral Diet existed under the existing constitution, the new constitution abolished the upper House of Peers, which consisted of members of the nobility (similar to the British House of Lords). The new constitution provided that both chambers be directly elected, with a lower House of Representatives and an upper House of Councillors. The House of Representatives has the sole ability to pass a vote of no confidence in the Cabinet, can override the House of Councillors' veto on any bill, and has priority in determining the national budget, approving treaties and nominating the Prime Minister when the two houses disagree.

Executive authority is vested in a cabinet headed by a Prime Minister. The Prime Minister and a majority of the Cabinet members must be members of the Diet, and have the right and obligation to attend sessions of the Diet. The Cabinet may also dissolve the House of Representatives and call for a general election to be held.

The judiciary consists of several lower courts headed by a Supreme Court. The Chief Justice of the Supreme Court is nominated by the Cabinet and appointed by the Emperor, while other justices are nominated and appointed by the Cabinet and approved by the Emperor. Lower court judges are nominated by the Supreme Court, appointed by the Cabinet and approved by the Emperor. As in the United States, all courts have the power of judicial review and may interpret the Constitution to overrule statutes and other government acts, but only in the event that such interpretation is relevant to an actual dispute.

The Constitution also provides a framework for local government, requiring that local entities have elected heads and assemblies, and providing that government acts applicable to particular local areas must be approved by the residents of those areas. These provisions formed the framework of the Local Autonomy Law of 1947, which established the modern system of prefectures, municipalities and other local government entities.

Amendments (Article 96)[edit]

Under Article 96, amendments to the Constitution "shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify." The Constitution has not been amended since its implementation in 1947, although there have been movements led by the Liberal Democratic Party to make various amendments to it.

Other provisions (Articles 97–103)[edit]

Article 97 provides for the inviolability of fundamental human rights. Article 98 provides that the constitution takes precedence over any "law, ordinance, imperial rescript or other act of government" that offends against its provisions, and that "the treaties concluded by Japan and established laws of nations shall be faithfully observed". In most nations it is for the legislature to determine to what extent, if at all, treaties concluded by the state will be reflected in its domestic law; under Article 98, however, international law and the treaties Japan has ratified automatically form a part of domestic law. Article 99 binds the Emperor and public officials to observe the Constitution.

The final four articles set forth a six-month transitional period between adoption and implementation of the Constitution. This transitional period took place from November 3, 1946 to May 3, 1947. Pursuant to Article 100, the first House of Councillors election was held during this period in April 1947, and pursuant to Article 102, half of the elected Councillors were given three-year terms. A general election was also held during this period, as a result of which several former House of Peers members moved to the House of Representatives. Article 103 provided that public officials currently in office would not be removed as a direct result of the adoption or implementation of the new Constitution.

Amendments and revisions[edit]

The constitution has not been amended since its 1947 enactment. Article 96 provides that amendments can be made to any part of the constitution. However, a proposed amendment must first be approved by both houses of the Diet, by at least a super majority of two-thirds of each house (rather than just a simple majority). It must then be submitted to a referendum in which it is sufficient for it to be endorsed by a simple majority of votes cast. A successful amendment is finally promulgated by the Emperor, but the monarch cannot veto an amendment.

Some commentators have suggested that the difficulty of the amendment process was favoured by the constitution's American authors from a desire that the fundamentals of the regime they had imposed would be resistant to change. However, among Japanese themselves, any change to the document and to the post-war settlement it embodies is highly controversial. From the 1960s to the 1980s, constitutional revision was rarely debated.[11] In the 1990s, right-leaning and conservative voices broke some taboos,[11] for example, when the Yomiuri Shimbun published a suggestion for constitutional revision in 1994.[11] This period saw a number of right-leaning groups forming to aggressively push for constitutional revision, but also a significant number of organizations and individuals speaking out against revision[12] and in support of "the peace constitution."

The debate has been highly polarized. The most controversial issues are proposed changes to Article 9, the "peace article" and provisions relating to the role of the Emperor. Progressive, left, center-left and peace movement related individuals and organizations, as well as the opposition parties,[13] labor [14] and youth groups advocate keeping (and even strengthening) the existing constitution in these areas, while right-leaning, nationalist and/or conservative groups and individuals advocate changes to increase the prestige of the Emperor (though not granting him political powers) and to allow a more aggressive stance of the self-defense force, e.g. by turning it officially into a military. Others areas of the constitution and connected laws discussed for potential revision relate to the status of women, the education system and the system of public corporations (including social welfare, non-profit and religious organizations as well as foundations), and structural reform of the election process, e.g. to allow for direct election of the prime minister.[11] There are countless grassroots groups, associations, NGOs, think tanks, scholars, and politicians speaking out in favor of one or the other side of the issue.[15]

Amendment Drafts by the LDP[edit]

The Liberal Democratic Party (LDP), one of the most influential political parties in Japan that has been in majority in the Diet for the most of the time since its 1955 establishment, adopts several party platforms every of which lists "revision of the current Constitution" as a political motive. One of the earliest platforms, "The Duties of the Party" in 1955, points out as follows:[16]

In recent years the LDP has committed itself more to constitutional revision, following its victory in the September 2005 general election of the representatives. Currently, the party has released two versions of amendment drafts, each in 2005 and 2012.

2005 Draft[edit]

In August 2005, the then Japanese Prime Minister, Junichiro Koizumi, proposed an amendment to the constitution in order to increase Japan's Defence Forces' roles in international affairs. A draft of the proposed constitution was released by the LDP on 22 November 2005 as part of the fiftieth anniversary of the party's founding. The proposed changes included:

This draft fanned the debate, with strong opposition coming even from non-governmental organisations of other countries, as well as established and newly formed grassroots Japanese organisations, such as Save Article 9. Per the current constitution, a proposal for constitutional changes must be passed by a two-thirds vote in the Diet, then be put to a national referendum. However, there was in 2005 no legislation in place for such a referendum.

Koizumi's successor, Shinzo Abe vowed to push aggressively for constitutional revision. A major step toward this was getting legislation passed to allow for a national referendum in April 2007.[17] However, by that time there was little public support for changing the constitution, with a survey showing 34.5% of Japanese not wanting any changes, 44.5% wanting no changes to Article 9, and 54.6% supporting the current interpretation on self-defense.[17] On the 60th anniversary of the constitution, on 3 May 2007, thousands took to the streets in support of Article 9.[17] The Chief Cabinet secretary and other top government officials interpreted the survey to mean that the public wants a pacifist Constitution that renounces war, and may need to be better informed about the details of the revision debate.[18] The legislation passed by parliament specifies that a referendum on constitutional reform could take place at the earliest in 2010, and would need approval from a majority of voters.

2012 Draft[edit]

On 27 April 2012, the LDP drafted a new version of amendment[19] with an accompanying booklet[20] describing an explanation for general readers. The booklet states that the spirit of the amendment is to "make the Constitution more suitable for Japan" by "drastically revising the translationese wording and the provisions based on the theory of natural human rights currently adopted in the Constitution".[21] The proposed changes includes:

The current Constitution has the phrase "public welfare" in four articles (Articles 12, 13, 22 and 29) and states that any human right is subject to restriction when it "interferes with the public welfare". The majority of legal professionals argue that the spirit of such restriction against rights based on "public welfare" is to protect other people's rights from infringement.[25] In the LDP draft, every instance of the phrase "public welfare" is replaced with a new phrase: "public interest and public order". The booklet describes the reason for this change as "to enable the State to restrict human rights for the sake of purposes other than protecting people's rights from infringement",[24] but it remains unclear under what conditions the State can restrict human rights. It also explains that what "public order" means is "order of society" and its intention is not to prohibit the people from making an objection to the government,[26] but it explains nothing about "public interest".
Provisions regarding the people's rights modified and/or added in the LDP draft include:
Additionally, although defense of the national territory (Article 9-3) and environmental protection (Article 25-2) are literally listed under the LDP draft as obligations of the State, these provisions let the State call for the "cooperation with the people" to meet the goals provided, effectively functioning as obligation clauses on the people's side.

See also[edit]

Notes[edit]

  1. ^ Ito, Masami, "Constitution again faces calls for revision to meet reality", Japan Times, 1 May 2012, p. 3.
  2. ^ John Dower, Embracing Defeat, 1999, pp.374, 375, 383, 384.
  3. ^ Dower, John W. (1999). Embracing defeat : Japan in the wake of World War II (1st ed. ed.). New York: W.W. Norton & Co/New Press. pp. 365–367. ISBN 0393046869. 
  4. ^ "Beate Gordon, a drafter of Japan's Constitution, dies at 89". The Mainichi. January 01, 2013 (Mainichi Japan). Retrieved 1 January 2013. 
  5. ^ John Dower, Embracing Defeat, p.411: "categories of deletions and suppressions" in CCD's key log in June 1946.
  6. ^ Dower, p. 407
  7. ^ "Publication and Work of the Constitution Popularization Society". Birth of the Constitution of Japan. National Diet Library of Japan. Retrieved 24 May 2013. 
  8. ^ Mark A. Levin, Essential Commodities and Racial Justice: Using Constitutional Protection of Japan’s Indigenous Ainu People to Inform Understandings of the United States and Japan (2001). New York University of International Law and Politics, Vol. 33 (2001), pp. 484, 488. Available at SSRN: http://ssrn.com/abstract=1635451.
  9. ^ Mark A. Levin, Civil Justice and the Constitution: Limits on Instrumental Judicial Administration in Japan. Pacific Rim Law & Policy Journal, Volume 20, No. 2, March 2011. Available at SSRN: http://ssrn.com/abstract=1653992; Eiji Sasada, Saibankan Seido (The Court System) (Yuhikaku 1997) at 86.
  10. ^ Ramseyer, J. Mark; Rasmusen, Eric (January 2001). "Why is the Japanese Conviction Rate So High?". Journal of Legal Studies 30 (1): 53–88. doi:10.1086/468111. 
  11. ^ a b c d [1][dead link]
  12. ^ [2][dead link]
  13. ^ [3][dead link]
  14. ^ [4][dead link]
  15. ^ [5][dead link]
  16. ^ "Tou no Shimei", http://search.japantimes.co.jp/cgi-bin/nn20070417a2.html
  17. ^ a b c "Japan approves constitution steps". BBC News. 14 May 2007. Retrieved 30 April 2010. 
  18. ^ Support falls for amending Constitution | The Japan Times Online
  19. ^ Nihon-koku Kenpou Kaisei Souan, http://www.jimin.jp/policy/policy_topics/pdf/seisaku-109.pdf
  20. ^ Nihon-koku Kenpou Kaisei Souan Q & A, http://www.jimin.jp/policy/pamphlet/pdf/kenpou_qa.pdf
  21. ^ Nihon-koku Kenpou Kaisei Souan Q & A, p. 3.
  22. ^ For example, the paragraph (4) of Article 6 of the LDP draft requires that the Emperor should obtain the shingen ("advice", especially one given from a subordinate to his superior) from the Cabinet, as opposed to the jogen to shōnin ("advice and approval") as stipulated in the current Constitution, for his all acts in matters of the State. The booklet explains that the reason for this change is because the phrase jogen to shōnin sounds "offensive to the Emperor" (Nihon-koku Kenpou Kaisei Souan Q & A, p. 8).
  23. ^ The LDP explains that the reason of this change is because the Emperor was formerly defined as "the head of the Empire" in the Article 4 of the Constitution of the Empire of Japan (Nihon-koku Kenpou Kaisei Souan Q & A, p. 7).
  24. ^ a b Nihon-koku Kenpou Kaisei Souan Q & A, p. 14.
  25. ^ For example, Ashibe, Nobuyoshi, Kenpou, fifth edition, edited by Takahashi, Kazuyuki, Tokyo: Iwanami Shoten (2011), pp. 100-101.
  26. ^ Nihon-koku Kenpou Kaisei Souan Q & A, pp. 14-15.
  27. ^ For example, one of the draft authors (Shibayama Masahiko, http://blogos.com/article/38240/ ) discusses that "the current Constitution is unable to conduct measures promptly against domestic situations including excessive individualism".
  28. ^ Ashibe-Takahashi (2011), p. 12.
  29. ^ Nihon-koku Kenpou Kaisei Souan Q & A, p. 17.
  30. ^ Ashibe-Takahashi (2011), pp. 118-124.
  31. ^ Nihon-koku Kenpou Kaisei Souan Q & A, p. 15.

References[edit]

External links[edit]